Cell tower dispute may be headed to court

By GAIL OBER

Thursday

Oct 29, 2009 at 3:15 AM

The battle between the three companies and the town's selectmen over the proposed cell phone tower on Miramichie Hill will likely go court.

Town officials said Monday the Alton taxpayers have spent $181,129 defending the decision to deny the variance, a despite numerous and recent efforts, have still not reached an equitable settlement with them.

"I really can't comment on anything about the suit other than how much we've spent so far in legal bills," said Town Administrator Russ Bailey.

The Citizen has also learned the previous legal firm that represented the applicants — Industrial Communications and Electronics, the actual builder of the tower, and two cell phone companies, RCC Atlantic [d.b.a. Unicel] and USCOC [d.b.a. U.S. Cellular] — advised the applicants to fight the 2006 ordinance saying "unless you can say with absolute certainty that there are no other sites available in the entire town of Alton, obtaining a variance may be quite difficult."

"All that would be needed to defeat the application would be one available property that could host a tower 10 feet above the tree line," wrote attorney Earl W. Duval of Duval & Associates shortly before Alton voters passed the revised Zoning ordinances in March of 2006.

It was almost five years ago when Industrial Communications and Electronics, a tower contracting firm, chose Miramichie Hill in East Alton as one of two spots where a cell tower would bridge the gaps in cell phone coverage along parts of Route 28.

At the time, in 2005, a tower on Miramichie Hill would have involved a zoning variance because it was not in one of four "overlay districts" that allowed cell towers. The town was also under an "interim growth management ordinance" that prevented any new construction until the March 2006 elections when voters approved new zoning ordinances.

Voters overwhelmingly adopted the new zoning ordinances that allows cell towers in all areas of Alton, with a few exceptions, but restricted their height to 10-feet above the average tree canopy.

The problem, said independent engineers, was the Miramichie Hill tower needed to be 120 feet tall to be effective — 61 feet above the average tree canopy and still required a variance.

After the Zoning Board of Appeals denied the Miramichie Hill variance in December 2006, the cell tower companies switched legal firms to Steven E. Grill of Devine, Millimet & Branch of Manchester and filed suit against the town.

The cell tower companies and their developer are challenging that the revised Alton Zoning Regulations of 2006 "effectively prohibit" cell towers throughout the entire community — a violation of federal law.

However, according to the applicants' previous attorney, "Case law has said time and time again that it is in the discretion of the community to choose whether it wants taller but fewer towers, or shorter, but more numerous towers," said Duval in the internal memorandum to the cell tower companies that was admitted into evidence after it was accidentally included in a file during the discovery portion of the suit.

Further muddying the legal waters is abutter David Slade who successfully petitioned the court to intervene and become a co-defendant with the town of Alton.

"I really don't think they can settle this without me," said Slade who has offered financial assistance to the town to offset its soaring legal costs.

Slade has described his battle against the cell tower companies as a David-versus-Goliath-type battle where the cell tower companies have deep enough pockets to continue to fight in court for what they want, often forcing small communities with limited resources to knuckle under their wishes.

Slade has also questioned whether or not the selectmen have the legal right to override a zoning board decision with a negotiated settlement, saying he would think any change in the planning proposal, such as reducing the height of the proposed tower, would need to be reevaluated by the land boards.

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